The first Mishnah in Talmud Kiddushin says that a woman can be bought (betrothed) via intercourse. As I understand, there must always be 2 witnesses to verify that one of the 3 methods mentioned in Kiddushin actually occurred.

How do the witnesses verify that intercourse occurred? Do two people stand in the room and watch the action happen? (I doubt that - it's a lack of privacy.) How would a couple verify that they did this as a means of marriage? How do the witnesses confirm that intercourse actually occurred?

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    What makes you think this method followed laws of privacy? There's probably a reason no one ever does this – Double AA Jul 9 '18 at 16:01

The Gemara (Gittin 81b) learns that according to Beis Hillel, witnesses on the seclusion are like witnesses of the actual action. That is, watching the couple walk into a room together is enough for Kiddushin.

The Rambam (Ishus 3:5) writes as follows:

וְאִם קִדֵּשׁ בְּבִיאָה אוֹמֵר לָהּ הֲרֵי אַתְּ מְקֻדֶּשֶׁת לִי אוֹ הֲרֵי אַתְּ מְאֹרֶסֶת לִי אוֹ הֲרֵי אַתְּ לִי לְאִשָּׁה בִּבְעִילָה זוֹ וְכָל כַּיּוֹצֵא בָּזֶה. וּמִתְיַחֵד עִמָּהּ בִּפְנֵי שְׁנֵי עֵדִים וּבוֹעֲלָהּ.

If he does Kiddushin with intercourse, he says to her, “You are Mekudeshes to me,” or “You are Me’oreses to me,” or “You are to me a wife with this intercourse,” or the like, and he secludes himself with her before two witnesses and has intercourse with her.

Picking up on the fact that the Rambam only mentions the witnesses in connection with the seclusion and not the intercourse, the Maggid Mishnah writes:

בגיטין פרק הזורק (דף פ"א) אמרינן הן הן עידי יחוד הן הן עידי ביאה ופשוט הוא שכל האומר שעל דעת לקדשה מתייחד עמה והוא בפני עדים הן הן עידי ביאה:

In Gittin in Perek HaZoreik (daf 81) we say “These are the witnesses of seclusion - they are the witnesses of intercourse.” It’s obvious that anyone who says that with the intent to marry her he is secluding himself with her, and that is in front of witnesses, that they are the witnesses for intercourse.

But if the witnesses don’t actually see the intercourse, how can we be certain that it actually happened? In short, we can’t.

The case Beis Shammai and Beis Hillel we’re discussing is when a man gives his wife a get and then is intimate with his wife. Does he need to give a new get? Beis Shammai for once is lenient, and Beis Hillel stringent. In the conclusion of the Gemara, the case is that there were Eidi Yichud but no Eidi Bi’ah.

Rashi explains the reason behind Beis Hillel’s opinion that Eidi Yichud are considered like Eidi Bi’ah:

הן הן כו' - כלומר כיון דראו שנתייחדו אין צריך עדות של ביאה גדול מזה ודאי אנן סהדי כיון דגייסי אהדדי לא פרשו זה מזה:

Since we see that they are secluded, we don’t need a greater testimony to their intimacy than this; we are witnesses that since they are close with one another, they won’t separate from each other.

In other words, once he says he’s going to be intimate, we assume that he is. You’re correct - maybe something will prevent them from acting. But we act on the chazakah of לבו גס בה.

This logic of לבו גס בה applies in the other direction also - in a case where they were divorced only after Kiddushin but not Nisuin, the Gemara rules that even Beis Hillel won’t require a second get:

ומודים בנתגרשה מן האירוסין שאינה צריכה הימנו גט שני דכיון דאין לבו גס בה לא אמרינן הן הן עדי ביאה They agree when they were divorced from Kiddushin that she doesn’t need a second get, for since he is not close with her, we don’t say that they are witnesses to the intimacy.

This lack of absolute knowledge isn't a problem here. Witnesses for Kiddushin are not there, as you say, to verify if Kiddushin occurred. It's not like if there weren't witnesses they'd be married and just unable to convince anyone else of it. Having witnesses is part of the ceremony itself and here their being just outside with a presumption of intent and action is sufficient to make the ceremony effective. If there is actually a doubt if marital relations are occurring in a marriage (eg. one spouse sues the other for divorce with this claim), then witnesses of seclusion are insufficient and the court can't adjudicate the case further (Rambam Ishus 14:16). It is prohibited to bring the witnesses into the room itself to observe due to modesty concerns (ibid.). Indeed even effecting Kiddushin with the witnesses outside the room is strongly discouraged and one is lashed for doing so (ibid. 3:21).

In summary: Witnesses to the seclusion are enough for Kiddushin to be effective. Since he says he’s going to be intimate with her and we see that they are close with one another, we trust the presumption and declare it an act of Kiddushin. There is no way to really verify if intercourse actually took place, but that is not a problem for Kiddushin.

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    Hilkhot Gerushin 10:19[18] says more explicitly: "For a person who consecrates his wife via sexual relations need not engage in relations in the presence of witnesses. [All that] is necessary that [the couple] enter into privacy in the presence of witnesses and engage in relations in privacy, as explained". – Tamir Evan Jul 9 '18 at 16:25
  • @DoubleAA let's continue this discussion in chat. – msh210 Jul 9 '18 at 17:34
  • AFAICT this is correct. I have seen this idea used in a modern ruling. – SAH Aug 8 '18 at 7:31

I'd explain it from a different angle (EDITED: you actually ask two different question here):

1. What the witnesses testify about:

THey don't need to see anything but the door closed - they witness the Chazokeh!

One of the most important bases for judgments in Judaism is Chazokeh (חזקה),
i.g if it walks like a duck and swims like a duck and quacks like a duck, we call it a duck. It is so serious - we stone people based on חזקה.

For example, two witnesses see someone transgressing Shabbos - there could be tons of reasons why they saw wrong, but we kill for that חזקה that they claim they saw. Another example - a couple comes to a town with a kid and live together as a family for 15 years and then the kid comes onto his mother claiming she's not. We kill for that חזקה.

Therefore, if they entered a room openly and willingly before 'witnesses to make an act, and stayed in the room long enough to make it - we need no more details to declare their marriage.

NB: The same rule holds for other witnessings of the act, like the Sotah for example.

2. How the intercourse can be verified:

THe lack of the act could not be possibly verified in any way (forensically?), even if they claim she's still a virgin (there are legit ways to achieve that) or he's impotent etc - nothing holds against a Chazokeh.

The only way to disprove it (I would call it a disproval but a Sofek) is to either bring Eidim Zomemim to disqualify the main Edim or to bring two other Eidim that will testify that the couple jumped out the window straight away and ran away.

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    How is this different than my answer except that mine is sourced? – DonielF Jul 9 '18 at 19:36
  • You have an interesting angle, but see my last comment below the other answer (response to DonielF). I'm not sure chazaqa could apply here. It sounds risky and questionable. In a sense, your suggestion contradicts some of the halachot of yichud. I think one of them says that a man or woman can be in a closed room in an office conference room because it's expected that people enter at any time. It puts to question having someone say, I'm going in this room with this woman, and people may assume they're getting married. – DanF Jul 9 '18 at 19:39
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    @DonielF Because mine explains how it works, not just states that it works. – Al Berko Jul 9 '18 at 19:41
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    Your sevara makes sense. But you still don’t have a source for it - you’re making it up. – DonielF Jul 9 '18 at 19:45
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    @DonielF WHat Sevorah? That's how the wintessing works. Witnessing defines a defaultive situation, to disprove which we need a proof, not the vice versa. – Al Berko Jul 9 '18 at 19:48

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